Right to Bear Arms

First published May 20, 1995.

The question of the right to bear arms (who has the right
to bear which arms) is a controversial one. What follows is an exposition
of my own opinions, supported, I think, by a lot of evidence, but be aware
that others think differently.

Contents

This page shows that the right to bear coats of arms was unrestricted
in the Middle Ages. The question is viewed in terms of existing laws and
regulations (de jure) as well as in
terms of actual practice (de facto). The
later evolution is also discussed: heraldry
remained unregulated in most countries, with the significant exception
of Britain.

Introduction

A common prejudice has associated heraldry exclusively with nobility
or gentry. This has no foundation in fact, law or history of European armory.
Although heraldry began with the feudal nobility, it quickly extended to
all classes of society, beginning with knights
(who did not become part of the nobility until the late 13th century, long
after they started using arms) all the way to peasants by the 14th century;
and self-assumption was the only existing way (along with inheritance,
of course) to acquire arms until the mid-14th c. After that date, sovereigns
began to grant arms (the first known grant of arms was made in 1338 by
the Emperor, although the French national archives display a
grant of arms of 1334 by the duke of Bourbon) but self-assumption remained a normal way to acquire arms,
and it was in no way restricted by status. In fact, even in England grants
of arms to individuals remained very rare until the end of the 15th century.

The only restriction on self-assumption acknowledged by jurists was
against consciously assuming arms already borne by another family within
a given jurisdiction, at least when harm could ensue for the family. The
problem of conflict of arms between knights is what brought heraldry into
the jurisdiction of the Court of Chivalry
in England in the late 14th century.

Since heraldry was unregulated, arms could and were adopted by all sorts
of people, and arms borne by peasants or tradesmen weren't necessarily
different from noble arms, either in style or in appearance. Only in the
16th century does one see some attempts at regulating heraldry, in two
ways: by limiting the acquisition of arms to grants, and by restricting
the right to bear arms to certain social categories. Most attempts were
half-heartedly enforced, and whole-heartedly ignored. Some countries never
experienced either: Switzerland, as well as France save for two minor and
short-lived episodes. England and Scotland stand out as historical exceptions
in this regard. The regulation of heraldry in Scotland
is based on a statute of 1672 and is enforced to this day by the Scottish
judicial system. The situation in England
is rather more complex, and the extent to which regulation is actually
enforced, or enforceable, is a matter of debate.

De Jure

In the Middle Ages, anyone could bear arms. This is a simple fact, which
is abundantly clear from the following citations.

Bartolo da Sassoferrato, famous Italian jurist of the 14th century,
wrote a Tractatus de Insigniis et Armis ca. 1355, the first treatise
on heraldry: there, he discusses the right to bear arms, and comes to the
conclusion that not only can any man assume arms as he pleases, but he
can even assume the arms of another, subject to certain restrictions. (I
provide more details in a note on Bartolo's De
Insigniis et Armis).

Honoré Bonet, a French prior, wrote a treatise of the law of
war between 1382 and 1387. Although he distinguished arms of dominion and
arms of office, which are protected, he recognizes that there are arms
"lesquelles chacun a pris a son plaisir" (which each has taken
at his pleasure), which can also be changed at will, subject to the same
proviso about not injuring others. Bonet is more inclined, however, to
advocate that, within a jurisdiction like a town or a region, arms be kept
unique, and that the first one to assume arms be protected from others
assuming the same arms, but only on the grounds that confusion and injury
must be avoided. Bonet's book proved to be extremely popular among the
general public, as Bartolo was influential among jurists and scholars,
and was cited and copied in many countries. More details are given in a
note on Bonet's Arbre des Batailles.

Bonet's book was circulated throughout Europe; for example, a copy
exists in Scotland in Gilbert of the Haye's prose manuscript of 1456,
titled The buke of the law of armys (published by J. H. Stevenson
in 1901-14).

Nicholas Upton, canon of Salisbury, repeats the
same ideas in his legal tract De Studio Militari, written in 1440
and dedicated to the duke of Gloucester. The treatise covers knighthood
(books 1 and 2) and heraldry (books 3 and 4). Upton takes up the question
of whether one can freely assume arms in book 1 (1654 ed., p. 58):

"as in these days we see openly how many poor men through their
service in the French wars have become noble, some by their prudence, some
by their energy, some by their valour, and some by the virtures which,
as I said above, ennoble men. And many of thse have upon their own authority
taken arms to be borne by themselves and their heirs".

He recognizes them as valid, though of less authority and dignity than
arms granted by the prince (he denies heralds the right to grant arms).
Note that this is written 23 years after the writs of 1417, which shows
that these writs must not have been enforced very well, even for soldiers
fighting in France (let alone the rest of society, which they did not cover
in any case).

The Book of Saint-Albans, which dates from the late 15th c., follows
Upton closely.

"Four manners of ways we have arms: the first manner of ways, we
have our own arms, which we bear of our father or of our mother or of our
predecessor... The second manner, we have arms by our merit [...] a poor
archer might have taken a prince or some noble lord and so the arms of
that prisoner by him so taken rightfully he may put to him and to his heirs.
On the third manner of ways we have arms the which we bear by the granting
of a prince or of some other lords. [...] The fourth manner of wise, we
may have those arms the which we take on our own proper authority, as in
these days openly we see how many poor men, by their grace, favor, labor
or deserving, are made nobles... and of these men, many by their own authority
have taken arms, to be born to them and to their heirs, of whom it needs
not here to reherse the names. Nevertheless arms that be so taken they
may lawfully and freely bear; but yet they be not of so great dignity and
authority as those arms the which are granted day by day by the authority
of a prince or of a lord. Yet arms by a man's proper authority taken, if
another man have not borne them afore, be of strength enough."

The Argentaye Tract, a ca. 1480 treatise from Brittany, also contains
a passage on heraldry and the right to arms.

Diego de Valera, a Spaniard, wrote a treatise on nobility in 1440, the
Espejo de verdadera nobleza. In it, he writes: "we see a common
usage in France and Germany for burghers to take arms as they please, which
they put on their houses and in the churches of which they are parishioners,
in which they keep a distinction with noblemen, because noblemen display
their arms wherever they want and wear tunics of arms." When discussing
the several ways of acquiring arms, he mentions the "fourth and last
kind are self-assumed arms, as do burghers, rich landowners and powerful
merchants."

Juan Rodrigues del Padrón, a Spanish gentleman writing around
1439, differs somewhat from Bartolo whose text he comments. He thinks that
coats of arms are a mark of nobility, a conclusion to which he comes from
the notion that arms were first invented to allow fighters whose features
were covered to be recognized in battle, and from the fact that non-nobles
did not wear full-face helmets. He does think that, among noblemen, anyone
can assume arms, although arms granted by a prince are more honorable.
He also disagrees with Bartolo on assumption of existing arms, again based
on the notion that arms were invented to identify individuals: free assumption
of existing arms would lead to confusion and fraud. But he accepts that
a Pole can assume the arms of a Spaniard, or a Spaniard those of a Cypriot,
or a Cypriot those of a German.

So we have texts from Germany, France, England attesting the fact that
self-assumed arms were common, and deemed perfectly legal, without regard
to distinction between nobles and commoners, which shows that, as of 1350
at least, the law was in accord with actual practice, since seals show
arms borne by commoners as well as nobles, with no visible difference (even
the use of helmets is not consistent: some merchants use it, some nobles
don't).

Some have argued that Bartolo's ideas were merely parroted by later
writers without thinking. but it is hard to believe that so many writers
in so many countries could have repeated those ideas on heraldry and that
their books would have enjoyed the success that they did, if such ideas
had been at variance with actual practice.

It is strange that Anthony Wagner, in Heralds and Heraldry (where
a number of these texts are cited) acknowledges that "the notion that
arms belong to the nobility seems here entirely absent...this may perhaps
be characteristic of the juristic as against the chivalric point of view."
However, the evidence he cites to expound the "chivalric point of
view" show no such notion that arms belong to the nobility, and he
makes in essence a logical mistake: since arms were required to enter into
tournaments, he reasons, only those who participated in tournaments could
bear arms. True, heralds asked for arms to be displayed so they could verify
the nobility of the participants; heralds knew, or had listings of, the
armorial bearings of the nobility and knightly class, and showing one's
arms was like showing an identification document. But, if it is true that,
in the US, one must be 21 or older to drink beer, it is not true that all
those aged 21 or more drink beer.

Likewise, the texts which Wagner cites from 14th c. grants of arms show
that ennoblement carried with it a grant of arms, but that does not prove
that arms were an exclusive mark of nobility. If it were, wouldn't find
evidence to that effect in royal regulations? But there is none to be found
before the 16th c. anywhere in Europe, with the only exceptions
are Savoy in 1430, and Portugal in 1466, and those regulations had no immediate
effect.

De Facto

In practice, all sorts of people had arms in the Middle Ages. There
is no doubt that heraldry originated with the feudal nobility in the mid
12th century, but the spread to other classes of society was rather rapid.

The following is translated from Galbreath and Jéquier's Manuel
du Blason (Lausanne, 1977):

"The theory that, in order to bear arms, it was necessary to have
a specific quality or ability, a kind of lesser nobility, cannot stand
when confronted with the facts. A few figures are more eloquent than any
other argument. In Artois, between 1285 and 1401, among 136 seals of burghers
one finds 75 armorial seals, without even counting aldermen among whom
the proportion is even higher. In Picardie, out of 107 burghers and citizens
cited as craftspeople, 42 have armorial seals, among whom two executioners.
In 1380, 71 burghers of Grammont in Flanders seal the act of submission
to the king of France: 64 have armorial seals. The ratios do not vary much
from country to country. Out of 163 seals of burghers of Hildesheim, in
Germany, dating from 1286 to 1449, 142 are armorial. In 1408, the 57 breadmakers
of the city of Lucerne, on the occasion of the construction of their common
hall, have their 57 arms painted in a small book, which is our first burgher
armory. From what precedes, one can conclude that, as early as the end
of the 13th century, burghers and craftsmen regularly bore arms. [....]

Peasants began bearing arms in the 14th century. Less rare than was
once believed (the Livre des Aveux du comte de Clermont en Beauvaisis,
from 1375, has several hundreds), peasant arms became common in the 17th
and 18th c., especially in Switzerland, Frisia and Lower-Saxony. [...]

Everyone was free to adopt arms at his pleasure, as long as they were
different from those of others. Cases of fortuitous resemblance were settled
by arbiters. The possession of a coat of arms did not rest on any right,
but came out of a social habit. Just as today that of a top-hat, the possession
of arms was, in the Middle Ages, unchanging and inevitable among the higher
classes of society; going down the social scale, arms became rarer and
indicated at the same time social aspirations."

Here are a few marker dates for the spread of heraldry to other classes,
according to Pastoureau:

1130-60: feudal lords

1160-1200: knights banneret

1180-1220: all knights

1220-60: squires

He says the speed might have been a bit greater in England; conversely,
the spread from nobiles to milites takes place after 1250 in the Low Countries
and Germany. It is important to understand, then, that heraldry is a military
phenomenon, not a nobiliary phenomenon, as knights did not form part of
the nobility until the late 13th century.

1220-30: women

1210-20: ecclesiastical sees and priests

1230-40: towns

1250: burghers, peasants

1300: religious communities

1350: corporations

The oldest women arms appear in the
mid-12th c. (Rohaise de Clare, niece of the earl of Pembroke, 1156 in England;
Yseult de Dol, 1183 in France; 1222 in Germany), and multiply from 1220-30
on. Ecclesiastical arms: the first arms
of a see are Langres, 1210-15. For higher prelates (e.g. bishops) arms
of sees preceded the use of familial arms, or both were shown on the seal,
for quite some time. Parish priests and monks started displaying personal
arms fairly early. The first papal arms were probably
those of Innocent IV (1243-54).

The oldest arms used by burghers, craftsmen and tradesmen
are from around 1240 in France and Rhenish and Flemish countries (1248
in Liége), somewhat later elsewhere (1283 in Tyrol, 1309 in Switzerland,
14th c. in Poland, 1360 in Navarre, etc) . They proliferate in the 14th
c. The first peasant arms appear about the same time, and are particularly
common in Normandy, southern England, Switzerland, Flanders. Pastoureau
cites a collection of 1017 seals from Normandy, ranging from 1202 to 1317.

The earliest town seals are those of Cologne (1149); Trier, Soest,
Mainz, Milan, Rome, Pisa, Siena, Verona all used seals before 1200. The
first urban seal with armory would be Hertford (1180-90); initially the
towns used the arms of their lord, but by 1230-40 a number of towns of
all sizes adopt their own arms. Arms of corporations are rare before the
mid-14th c. Monasteries and religious communities rarely have arms before
the beginning of the 14th c.

Perhaps the most striking proof of the widespread use of armory is the
fact that 14th c. Jews used arms. There are seals
used by Jews in Southern France, Spain and elsewhere, in their dealings
with municipal authorities for example, which display unmistakable armorial
bearings.

There is evidence of commoners' arms in 14th
century England and in other countries as well. The rule reserving
helmets for nobles (and therefore recognizing as legal commoners' arms)
can be found in Italy as well (see L'Araldo Veneto, 1680). In Portugal,
Alfonso V imposed restrictions on how commoners' arms could be devised,
and ultimately in the early 16th c. Manuel I reserved arms for nobles (references?)
In Switzerland, which never had a feudal nobility, peasant arms are quite
commonly found on seals beginning in the 14th c. (article by Cottu in the
Archives Héraldiques Suisses, 1971). I have discussed the
case of France elsewhere.

Later Evolution

The only real legislation in France until the late 17th century is an
ordinance of 1561 restricting the use of helmets to nobles. This was renewed
by Edict of 1620. In 1696, pressed for money, Louis XIV created a heraldic
legislation: no arms could be displayed if they hadn't been registered
with the King of Arms. But anyone could, and was indeed strongly urged,
if not forced, to register arms. Out of 115,000 arms registered in the
few years after 1696, 80,000 belonged to commoners. The real purpose of
the Edict was fiscal, since the fee charged for registration served to
finance the war effort. People who were forcibly assigned arms did not
get to choose the design, and there are many examples of serially manufactured
arms, as well as cruel canting arms (one Lemarié was given deer
antlers on his coat!). The system fell into disuse within a few years,
and self-assumption and usurpation of exterior ornaments became the norm
again. A 1760 attempt by the king to restrict arms to the nobility was
struck down by the courts as against the fundamental laws of the kingdom.
By 1789 Mirabeau complained that, as a true gentleman, he had to have a
ducal coronet engraved on his signet ring, since any commoner used a count's
coronet.

From 1808 to 1814, Napoleonic heraldry was in place. After the end of
the Empire, laisser-faire returned.

Examples of regulations in other countries. No arms were ever granted
in Switzerland, which never had a heraldic authority. In Austrian lands
arms were used by nobles and commoners alike, and the Austrian Emperor
in the 19th century was still granting arms to non-nobles.

The earliest known statute tending to restrict the use of heraldry is
in Savoie in 1430. In Portugal, a law of May 21, 1466, promulgated by Alfonso
V, prohibited the use of metals (presumably as tincture of the field) on
arms of commoners:

In 1583, the Cortes of Navarre ordered that all arms publicly displayed
by non-nobles in the last 40 years be removed. A law of 1642 reiterated
the prohibition. The intent was more against the simulation of noble status
rather than against arms used by commoners.

The evolution of heraldic regulation in England is unique. Aside from
Scotland, where an act of 1672 has defined
the status and powers of the Lord Lyon, there is no country where heraldry
has been as closely regulated by governmental authorities as in England.
The process by which this came about, however, is long and complex. Succinctly,
heraldry was unregulated as elsewhere until the early 16th c., when the
system of Visitations was established. The enforcement was provided by
the Court of Chivalry, a medieval court whose jurisdiction had been narrowed
to heraldic matters over time. The law of arms of England, defined by the
uses and customs of the Court of Chivalry, reached a point at the end of
the 17th c. where the only legal arms were arms registered at the College
of Arms. The Court of Chivalry ceased to operate in 1737, and was revived
only once, in 1954. Thus, the status of heraldic regulation and enforcement
has been in limbo.